CONCLUSIONS OF LAW
Jurisdiction for this matter is based in the Labor-Management
Relations Act, 29 U.S.C. § 185. This Court's jurisdiction is
not pre-empted by the plaintiff's filing of an unfair labor
charge with the National Labor Relations Board. Despite citing
International Longshoremen's Ass'n v. Davis, ___ U.S. ___, 106
S.Ct. 1904, 90 L.Ed.2d 389 (1986) and other cases, Weyerhaeuser's
argument of pre-emption fails. In Farmer v. United Brotherhood of
Carpenters & Joiners of America, Local 25, 430 U.S. 290, 302, 97
S.Ct. 1056, 1064, 51 L.Ed.2d 338 (1977), the Court ruled that if
there is little risk of interference with a federal
administrative scheme, then the pre-emption doctrine will not be
applied. This Court finds that Union's request for injunctive
relief until the arbitrator issues a ruling makes any potential
action by this Court unlikely to interfere with the NLRB's role
in this dispute.
Secondly, the Court rules that the Norris-LaGuardia Act, 29
U.S.C. § 101-115, does not prohibit the issuing of an
injunction in this type of labor dispute. Section two of the act
states its public policy, and it is clear that the legislation is
meant to prohibit federal court injunctions against peaceful
organization and association that is tied to the collective
bargaining process. 29 U.S.C. § 102. This type of request by
Union does not fall within the public policy enumerated in
Norris-LaGuardia. See Drywall Tapers v. Operative Plasterers',
537 F.2d 669 (2d Cir. 1976). Despite the narrowing of Boys
Markets Inc. v. Retail Clerks Union Local 770, 398 U.S. 235, 90
S.Ct. 1583, 26 L.Ed.2d 199 (1970) by Buffalo Forge Co. v. United
Steelworkers of America, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d
1022 (1976), a hearing on a motion to enjoin pending arbitration
is not prohibited by Norris-LaGuardia. The concern in Buffalo
Forge was with making federal courts participants in the merits
of arbitrable matters. 428 U.S. at 411, 96 S.Ct. at 3149.
Consistent with the conclusion in Boys Markets, this Court is now
asked to issue an injunction pending arbitration. The Court's
action will not interfere with the arbitrator's role.
The key case in this circuit on the standard for preliminary
injunctions is Roland Machinery Co. v. Dresser Industries, Inc.,
749 F.2d 380 (7th Cir. 1984). While there are more recent cases,
i.e. American Hospital Supply v. Hospital Products Ltd.,
780 F.2d 589 (7th Cir. 1986) and Lawson Products, Inc. v. Avnet, Inc.,
782 F.2d 1429 (7th Cir. 1986), Roland Machinery acts as the
foundation upon which these cases build their decisions. This
Court, too, shall use such groundwork.
Essential to Union's request for injunctive relief is a showing
that it has no adequate remedy at law, and that it will suffer
irreparable harm if the preliminary injunction is not ordered.
Only if Union has shown it will suffer harm that cannot be
rectified by an arbitrator's decision will a preliminary
injunction be proper.
Through the testimony of its two witnesses, Union attempted to
show that the testing proposed by Weyerhaeuser would cause an
invasion of privacy and a "black mark" on both its members' work
records and reputations. Union asserted that such an invasion and
the recording of said tests would be injuries that neither the
arbitrator nor a court of law could redress. The Court agrees
that both the privacy and the "black mark" arguments are
potential injuries that cannot be redressed by a court at law or
In considering this motion, the Court must also determine if
any irreparable harm will come to Weyerhaeuser if the injunction
is granted. This Court finds that Weyerhaeuser has not shown any
irreparable harm should its drug testing plan be delayed pending
arbitration. Weyerhaeuser can continue to use its present shop
rules to enforce safety in the work place pending arbitration.
Union must also show some likelihood of success on the merits
of its claim. The standard for such a showing is low, however. It
is enough that Union's chances are better than negligible. Roland
citing Omega Satellite Products Co. v. City of Indianapolis,
694 F.2d 119, 123 (7th Cir. 1982). It is apparent from the testimony
given and briefs filed that Union's chances before the arbitrator
are better than negligible. The nature of the rule to be
implemented and the proximity to the signing of a new collective
bargaining agreement convinces this Court that Union has shown
some likelihood of success on the merits of this dispute.
It should be noted that the low threshold required of the Union
in the Seventh Circuit explains why the Supreme Court's concern
in Buffalo Forge Co., does not apply to this case. Simply put,
the `negligible' standard required of the movants in requesting
an injunction prevents this Court from interfering with the
parties' contractual agreement to have such disputes resolved by
extra-judicial means. Because the Court is not required to rule
specifically on the merits of this dispute, Buffalo Forge's
concern that the arbitrator's function would be usurped is not at
issue in this case.
The Court finds the balance of hardships weigh on the side of
Union. Union has shown its members may suffer irreparable harm if
the company's drug screening program is implemented prior to
arbitration, while Weyerhaeuser has shown no irreparable harm to
it should the testing be delayed pending arbitration.
There has been no showing of any consequences to anyone beyond
the immediate parties, and, therefore, public policy will not be
examined by this Court. Roland at 388.
The Court expresses no opinion on whether the proposed alcohol
and drug testing program violates the parties collective
bargaining agreement, as Union contends, or comes within the
perview of management's right to direct the work force as
recognized in the collective bargaining agreement, as
Weyerhaeuser contends. These are the issues that will be before
The Weyerhaeuser Paper Company is therefore, preliminarily
ENJOINED and RESTRAINED from implementing its alcohol and drug
testing program on those of its employees who are members of
Stove, Furnace and Allied Appliance Workers' International Union,
Local 185, AFL-CIO until the arbitration arising out of the
grievance filed by Union on about October 2, 1986 is completed.
This preliminary injunction is expressly conditioned upon the
posting by Union of a bond in the amount of $5,000 with the Clerk
of the Court.
IT IS SO ORDERED
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